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2020-06-16 Ex 06Memorandum To: City Council, City Administrator & City Clerk From: John J. Fumero, City Attorney Subject: City of Okeechobee Charter Review INTRODUCTION This is intended to be a brief outline of municipal charters, the law, and the associated charter review process and options. First and foremost, municipal charters are important. A charter is the foundation of the local government and functions as the equivalent of a state or federal Constitution, setting forth guiding principles for governance. The charter should establish a framework for how the City operates in terms of its structure, responsibilities, functions and processes. Charter review is a basic good-government review process intended to keep the City charter relevant and in step with the needs and priorities of the citizens. While some municipal charters provide for a timetable and process for charter amendment, the City of Okeechobee’s charter does not specify a timetable or process for charter review. Most municipalities undergo a charter review process once every 10 to 20 years. However, Charters or charter provisions adopted or readopted subsequent to the adoption of the Municipal Home Rule Powers Act in 1973, may only be amended as provided in chapter 166 Florida Statutes. STATE LAW Section 166.031, Florida Statutes, sets forth the procedures to be observed in amending municipal charters, including a requirement that a proposed amendment shall be subject to approval by referendum of the voters. A municipal charter provision adopted or readopted after the creation of the Municipal Home Rule Powers Act in 1973 must be amended in accordance with section 166.031, Florida Statutes. Specifically, section 166.031, Florida statutes provides that: The governing body of a municipality may, by ordinance, … submit to the electors of said municipality a proposed amendment to its charter, which amendment may be to any part or to all of said charter except that part describing the boundaries of such municipality. In terms of timing, the governing body of the municipality must place the proposed amendment contained in the ordinance at the next general election held within the municipality or at a special election called for such purpose. If the proposed amendment receives the favorable vote of a majority of the municipal electors voting in the referendum, the governing body is required to incorporate the amendment into the charter and file a copy of the revised charter with the Department of State, at which time the revised charter shall become effective. While the Legislature has enacted certain exceptions to the referendum requirements of section 166.031, Florida Statutes, nothing in the Act provides a general exception to the referendum requirement for any charter amendment except those enumerated in section 166.021(4), Florida Statutes. As a general principle, concurrent legislation enacted by a municipality may not conflict with state law; if such conflict arises, state law will prevail. Moreover, a municipality cannot forbid that which the Legislature has authorized or required, nor may it authorize that which the Legislature has forbidden. All parts of a charter may be amended except that part defining the boundaries of the City. Boundary changes may be made only by following the statutory procedures for annexation and contraction, found in Chapter 171, F.S. Once these procedures are followed, boundary changes may be reflected in the language of the charter by action of the City Council, by ordinance and without referendum. Two other types of charter provisions may be changed without referendum. First, a municipal department which is provided for in the charter may be abolished by unanimous vote of the council. Second, charter language which has been judicially construed to be contrary to the federal or state constitution may be removed, again by unanimous vote only. CHARTER SUBJECT MATTER A charter should contain details which are of such importance that they should not be subject to change simply by ordinance, without a public referendum. By including certain provisions in the City charter, the citizens ensure that their provisions cannot be changed hastily and without popular consent. On the other hand, subjects of less importance should not be in the charter because it should be easie r to make necessary changes affecting them. In short, a happy medium should be found between including “enough” and including “too much” in the charter. Customary charter subject matter: 1. Powers of the City 2. City Council 3. City Manager (or other chief administrator) 4. Administrative Departments 5. Financial Procedures 6. Planning 7. Nominations and Elections 8. Initiative and Referendum 9. General Provisions 10. Transitional Provisions. CHARTER AND HOME RULE With the advent of municipal Home Rule in 1969, a municipal government is not restricted to those powers which are listed in its charter. A city may exercise any power for municipal purposes which is not explicitly prohibited by law. That being the case, the charter need not contain an exhaustive list of municipal powers. Despite the general grant of home-rule authority, a city may not exercise powers which are prohibited to municipalities by the constitution or general law; consequently, it is useless to put such provisions into a charter, as any such provisions found in a charter are null and void. THE CHARTER REVIEW AND PROCESS There is no charter review process that is prescribed by law. One of the threshold issues is for City Council to determine whether it shall conduct and drive the charter review process and development of the charter amendments itself versus through the appointment of a citizens’ charter review committee. If pursued b y City Council itself, there would need to be separately scheduled and publicly noticed charter review public workshops. On the other hand, the almost universal process followed by most principalities involves the establishment and the appointment of a citizens’ charter review committee. If this option is pursued, the charter review committee is typically a body authorized by the City Council and established for the single-purpose of drafting and submitting proposed amendments. Based on past practices, the committee is comprised of anywhere from 7 to 20 registered voters are appointed to such a committee. The goal here would be to appoint objective and impartial citizens with the strong knowledge of the city, its needs, and priorities. In either case it is important to note that charter review process is extremely time- consuming. The review process can easily take anywhere from 1 to 2 years depending on the approach and scope of the charter review. Whether charter review is pursued by City Council or a citizens committee, it is equally important to ensure that there is adequate staff support. In my experience, you would need a staff person to devote the majority of their time to shepherd the process, keep the process on a timetable and focused on the specific issues/amendments at hand, as well as provide any necessary research. My recommendation would be to have the City Council form a citizens charter review commission. The City Clerk provided me with useful information regarding past City Council formed committees with important missions. For example, the land development review committee met for 2 ½ years on a weekly basis. In that case, the committee was staffed by two professional planners and the committee secretary serving as staff. In addition, the City formed a seven member Centennial committee which met twice a month for almost 2 years. Both efforts required a substantial commitment of time on the part of the committee members. Both efforts required substantial support staff time. Both efforts required a knowledgeable chairperson with strong management and parliamentary skills to drive the process forward. All of these examples are equally pertinent to a charter review initiative. SCOPE OF THE CHARTER REVIEW PROCESS Whether by citizens committee or by the City Council, the initial task is to inform the public about the process, the goals, and to seek substantive public input on the issues or the subject areas and issues which should be addressed in the charter review process. The task of the charter review committee is to prepare and present to the City Council a series of proposed amendments to the City charter, or a complete “soup to nuts” rewrite of the City charter. If a citizens committee is formed, there should be specific direction from City Council to the committee regarding the mission and scope of the charter review process. In some cases City Council can identify and limit the committee process to a list of issues or subject areas identified by the City Council. MISSION OF THE CHARTER REVIEW COMMITTEE It cannot be emphasized enough that an important, initial action will be for the City Council to specifically define the scope and expectations for the charter review initiative. Generally speaking, the charter review committee may be authorized and empowered to do the following: - Examine the City charter. - Researching experiences of other cities under their respective charters and form of government to identify better governmental arrangements and practices. - Education and outreach to citizens about the process, and solicit citizen input. - Identifying specific issues or subject areas to be addressed in the charter amendments. - Drafting proposed charter amendments in the clear, logical and consistent fashion. PUBLIC OUTREACH AND PARTICIPATION The best charter is of little value if voters do not understand it and approve it. For this reason, many of the charter review initiatives that I reviewed in the state of Florida include a concerted effort in public outreach. This includes an interactive website with charter and charter review information, and the scheduling of numerous interactive public workshops throughout the process. CONCLUSION to ensure a successful and timely outcome, it is important that the City Council, at the inception of charter review, to conduct public workshops in order to outline and provide direction on the charter review process, the scope of the initiative, the specific issues and guidelines to be addressed, and any other expectations. As it relates to the charter review committee, City Council must set up the process and criteria for appointment of committee members. Given the complexity and significance of the work, charter review committees require sufficient staff and other professional support, as well as an attorney to provide legal guidance and parameters. There are a number of other best practices that are recommended for charter review proceedings which can be further researched and provided.